As David Souter prepares to go north . . . .

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HOW TO MAKE THE SUPREME COURT MUCH MORE REPRESENTATIVE


With the coming retirement of Justice David Souter, there is great interest in just who President Obama will appoint to succeed him. Spokespersons for various groups think that the Supreme Court should be more “representative.” Hispanics want a Hispanic, since one in six Americans is Hispanic. Women want a woman, noting that women are more than half of the population and yet only one current justice is a woman.

There is a group of Americans much more conspicuously absent from the Court than either Hispanics or women: people who are not lawyers. There are about 800,000 lawyers in the U.S., a tiny fraction of one percent of our 300,000,000 people. But every single current member of the Supreme Court is a lawyer, and this is also true of all previous justices.

We are told that diversity is important because it gives the justices more empathy with the different kinds of people who will be affected by their decisions. Also, diversity might give the justices different perspectives from which to view the legal questions facing the Court. If this is true, then having a non-lawyer on the Court could be tremendously helpful.

One or more non-lawyers on the Court might reduce its willingness to make American law more complicated by their own decisions and to tolerate excess complexity in acts of Congress.

The Court’s Fourth Amendment decisions governing arrests, searches and seizures, for example, have sometimes made the inherently difficult jobs of police officers nearly impossible. These decisions require the police to make decisions that even trained attorneys would consider close calls. The courts then have to devote scarce judicial time to second-guessing decisions made on the streets.
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Tax legislation enacted by Congress has become so complex that a high percentage of Americans now have to pay experts to prepare their tax returns, or at least buy software to help them do their own. The Due Process clause of the Fifth Amendment, which requires that people have “notice” of their legal duties, might seem to forbid tax laws which are so complicated that only experts (if anyone!) can understand them. But our lawyer-dominated judiciary has never seen fit to reign Congress in here.

Lawyers are much better equipped than normal people to cope with outrageous complexity, indeed they seem to thrive on it, so they may be inclined to ignore the practical implications of their decisions. That is why we need at least one non-lawyer on the Supreme Court.

There is no constitutional obstacle to appointing non-lawyers to the Supreme Court. Indeed, the Constitution states absolutely no prerequisites for membership on the Court: no citizenship requirement, no age requirement, no educational requirement. While I doubt that the Founders had our present situation in mind when drafting the Constitution, we should be grateful that their words give us the flexibility to take the next step in improving our Supreme Court by including non-lawyers in its membership.

French prime minister Georges Clemenceau once said that “War is too important to be left to the generals.” Likewise, law is too important to be left to the lawyers.

[This column has run in the Detroit Free Press and the Portland Oregonian.]